Judicial Review of Antidumping and Countervailing Duty Determinations by the Department of Commerce: Noteworthy Cases in 2009

Article excerpt

TABLE OF CONTENTS

INTRODUCTION
I. COUNTERVAILING DUTY LAW
   A. Non-Market Economies
   B. CVD--Adverse Facts Available
II. ANTIDUMPING LAW--NME SURROGATE VALUES
III. SCOPE
   A. Circumvention
   B. Scope Exclusions
   C. Scope--Mixed Media
IV. JURISDICTION Be JUDICIAL PROCESS
   A. Standing/Exhaustion
   B. Standing--Preliminary Injunction: Importer
   C. Preliminary Injunction: Exporter
   D. Intervention
V. ADMINISTRATIVE PROCESS
   A. Record--New Information
   B. Liquidation Instructions--Timing
CONCLUSION

INTRODUCTION

Last year the Court of International Trade (the "Court" or the "CIT") was called upon to address the ramifications of the first Supreme Court decision in decades to arise out of the antidumping ("AD") or countervailing duty ("CVD") laws. If that was not enough excitement for one year, the Court was also drawn into the controversy surrounding the Department of Commerce's ("Commerce") application of the CVD law to China, reversing the agency's longstanding position that the CVD law does not apply to non-market economies ("NME").

Because the Court's decision on Commerce's application of the CVD law to China is one of the most important and interesting cases of 2009, this article will begin there. In addition to this landmark case, however, the Court rendered decisions on a host of other issues, both substantive and procedural. This article discusses a number of those cases on a variety of important topics, including the use of adverse facts available, selection of surrogate values in AD NME cases, scope, jurisdiction and judicial process and, finally, administrative process.

I. COUNTERVAILING DUTY LAW

Historically, U.S. industries have sought relief under the CVD law far less frequently than under the AD law. Thus, much of the CVD jurisprudence has grown out of a few large cases such as the steel cases of the 1990s and successive cases against softwood lumber from Canada. In 2009, the Court embarked on what is likely to be a new era in CVD law dominated by cases involving application of the CVD law to NME countries, principally China. We begin with a discussion of the seminal case in this new era, GPX International Tire Corporation et al v. United States ("GPXII"), (1) which goes to the heart of the debate over the interplay between the CVD law and the special NME provisions in the AD law. Given the likelihood that the upward trend in the number of NME CVD cases is likely to continue, GPX II is followed by a discussion of two cases on an important, albeit less controversial topic, the potential ramifications of a government's failure to participate in a CVD case.

A. Non-Market Economies

In GPX II, (2) the Court addressed Commerce's application of the CVD law to China, particularly what the Court referred to as NME "coordination issues." (3) Ina controversial opinion, the Court held that: (1) Commerce is not statutorily barred from applying the CVD law to China, but "Commerce's current interpretation of the NME AD statute in relation to the CVD statute here was unreasonable", (4) (2) Commerce's refusal to consider GPX's request to be treated as a market-oriented industry ("MOI") was contrary to law, and (3) Commerce's adoption of a subsidy cut-off date was impermissibly arbitrary.

Turning to the first issue, for decades Commerce has followed Georgetown Steel Corporation et al v. United States (" Georgetown Steel"), (5) in which the Court of Appeals for the Federal Circuit upheld Commerce's decision that the countervailing duty law did not apply to NMEs. In 2007, however, Commerce "effected a sea change" when it found that, although China remained an NME, China's economy had advanced beyond a Soviet-style command economy to the point that Commerce could apply the CVD law to its exports. (6) Thus, for the first time, Commerce had concurrent AD and CVD cases against China and was presented with a host of new issues. …